Archive

Today, E-Crime Expert presents the main similarities and differences between privacy and data protection concepts mainly from two different legislative perspectives: Canada and the European Union (EU), and briefly from the United States (US).

Also, this blog post provides the main privacy and data protection legislative acts from Canada and EU as a useful resource for those interested or working in this field.

Last but not least, you could find bellow the full EU Data protection revision 2012 package.

I. US versus EU versus Canada

-The United States (US) and European Union (EU) have different concepts regarding personal information and private data, such as Privacy in the US versus Data Protection in the EU.

set of rights and principles for personal data treatment (processing),

without considering that the data is held in the public or private sector,

protects just natural persons not legal entities

the relation between data protection and the economic value as a proper balance between fundamental rights and free flow of information (which has economic value).

by granting data protection as a fundamental right, the aim is to protect the individuals but also to encourage the free flow of information, giving data subjects legal certainty and encouraging them to not negatively affect the exchange of information and data

-Canada – similar level of protection to the EU one.

Privacy is regulated by the government at the federal and provincial level:

Canadagives to the individual the right to access their data or other individuals’ or organizations data along with their privacy protection right under the same Act (The Privacy Act, FOIP)

EUgives to the data subject the right to protection of their personal data under one single act (Directive 95) and to access data for public interest under the Transparency Regulation (1049)-no others personal data could be accessed in the private sector (just for law enforcement)

Data protection has a privacy dimension, but it is narrower in scope than the privacy concept, “as the privacy encloses more than personal data” (i.e. private life, private home, private correspondence, etc.)

From a different angle, it encloses a wider area, “since personal data are protected not only to enhance the privacy of the subject, but also to guarantee other fundamental rights, such as the right to freedom of expression, or the right to know what data is gathered about you, to have access to your data, to ask for modification or deletion of your data, etc”

Furthermore, data protection gives individuals the right to know

What personal data is collected,

on what legal grounds,

how it is used, for how long it used and kept,

and by whom.

specifically grants data subjects with the rights to access, modify, update or ask for deletion of such data

It was proposed a Regulation versus the existing Directive. A Regulation is better, as it is immediately and more uniformly implemented into the Member States national law.

Data subjects

increasing responsibility and accountability – companies would have to notify their clients of any theft or accidental release of personal data

clarifying that where someone’s consent is required before a company reuses their personal data, they need to give that consent explicitly – people would also have access to their own private data and be able to transfer it to another service provider more easily

reinforcing the ‘right to be forgotten’ – people will be able to have their personal data deleted if a business or other organization has no legitimate reasons for keeping it

applying EU rules when personal data is processed outside Europe – people would be able to involve the national data protection authority in their country, even when their data is processed by a company based outside the EU

People will have easier access to their own data and be able to transfer personal data from one service provider to another more easily (right to data portability). This will improve competition among services

Good for business

A single set of rules would encourage a more consistent application of the law across the EU. Businesses would have clear rules on how to treat personal data

Companies would only have to deal with a single national data protection authority in the EU country where they have their main operations (saving businesses an estimated €2.3bn a year)

The obligation of appointment of a data protection officer for organizations with 250 employees and over (private sector

Instead of the current obligation of all companies to notify all data protection activities to data protection supervisors – a requirement that has led to unnecessary paperwork and costs businesses €130 million per year, the Regulation provides for increased responsibility and accountability for those processing personal data

Companies and organisations must notify the national supervisory authority of serious data breaches as soon as possible (if feasible within 24 hours)

Organisations will only have to deal with a single national data protection authority in the EU country where they have their main establishment. Likewise, people can refer to the data protection authority in their country, even when their data is processed by a company based outside the EU. Wherever consent is required for data to be processed, it is clarified that it has to be given explicitly, rather than assumed

EU rules must apply if personal data is handled abroad by companies that are active in the EU market and offer their services to EU citizens

Independent national data protection authorities will be strengthened so they can better enforce the EU rules at home. They will be empowered to fine companies that violate EU data protection rules. This can lead to penalties of up to €1 million or up to 2% of the global annual turnover of a company

Better enforcement

The new rules would give national data protection authorities powers to enforce the EU rules more rigorously

A new Directive will apply general data protection principles and rules for police and judicial cooperation in criminal matters. The rules will apply to both domestic and cross-border transfers of data. For the new Directive click here.

Next steps

The proposals is aimed to encourage more online commerce by improving consumer trust – contributing to economic growth and job creation. The new Data protection proposed legal framework (Regulation+Directive) must be approved by the European Parliament and Council before becoming law.

This month E-Crime Expert is presenting relevant Case law and rulings regarding data protection rights, law applicability and enforcement.

The purpose of this new series is to show actually how the relevant law should be applied in order to properly balance the right to free access of public information, free flow of information and the right to Privacy and Personal Data protection.

The series will balance both the applicability of Data Protection law in the private and public sector, focusing mostly on the Directive 95/46/EC (private sector) and Regulation 45/2001/EC (rights to data protection of individuals working with/for EU Institutions and bodies).

T-259/03, Nikolaou v. Commission, 12.9.2007

Action for non-contractual liability based on acts and omissions of OLAF. OLAF had disclosed certain information about its investigation concerning the applicant: a leak of information to a journalist; its annual report with information about the investigation; and its press statement. Applicant had requested access to the file and the final case report.

Burden of proof for establishing non-contractual liability: Normal rule: The burden of proof is on the applicant to establish: i) Illegal action of an institution; ii) Damages; iii) Proof that damages were caused by the illegal action of the institution. However, burden of proof shifts to the institution when a fact giving rise to damages could have resulted from various causes, and the institution has not introduced any element of proof as to which was the true cause, even though it was best placed to do so. Court concluded OLAF staff member leaked information (including PD) to a journalist, which were published, and OLAF’s press release confirmed the veracity of facts (including PD) that had been mentioned in several press articles. PD definition: The information published in the press release was PD, since the DS was easily identifiable, under the circumstances. The fact that the applicant was not named did not protect her anonymity. Processing definition: 1. Leak (unauthorised transmission of PD to a journalist by someone inside OLAF) and 2. publication of press release each constitute processing of PD.

Lawfulness:

• Leak constitutes unlawful processing in violation of Article 5 of Reg. 45/2001 because it was not authorized by the DS, not necessary under the other sub-paragraphs and it did not result from a decision by OLAF. Even though OLAF has a margin of discretion on transmissions, here it was not exercised because leak is unauthorised transmission. OLAF is best placed to prove how the leak occurred and that the Director of OLAF did not violate his obligations under Article 8(3) of Reg. 1073/99.

In the absence of such proof, OLAF (Commission) must be held responsible. No concrete showing of an internal system of control to prevent leaks or information in question had been treated in a manner that would guarantee its confidentiality.

• Publication of press release was not lawful under Article 5(a) and (b) because public did not need to know the information published in the press release at the time of its publication, before the competent authorities had decided whether to undertake judicial, disciplinary or financial follow-up.

Damages for violation of DP rules: violation of Reg. 45/2001 qualifies as an illegal act of an institution conferring rights on an individual. Objective of Reg. is to confer such rights on DSs.

• A leak of PD is necessarily a grave and manifest violation. Director has margin of appreciation on prevention, but made no showing.

• OLAF gravely and manifestly exceeded the limits of its discretion in the application of Article 5(a) and (e), which was sufficient to engage the responsibility of the Community.

This month E-Crime Expert is presenting relevant Case law and rulings regarding data protection rights, law applicability and enforcement.

The purpose of this new series is to show actually how the relevant law should be applied in order to properly balance the right to free access of public information, free flow of information and the right to Privacy and Personal Data protection.

The series will balance both the applicability of Data Protection law in the private and public sector, focusing mostly on the Directive 95/46/EC (private sector) and Regulation 45/2001/EC (rights to data protection of individuals working with/for EU Institutions and bodies).

Reference for preliminary ruling. Dutch law on PD held by local authorities provides that on request, Board of Aldermen must notify a DS within 4 weeks whether his PD have been disclosed to a purchaser or 3rd party during the preceding year. Data held by authority include basic data (name, dob, personal id no., ssn, local authority or registration, etc.) and data on transfers. Mr. R requested to be informed of all instances where data relating to him were transferred in preceding 2 years, content and recipients.

Question referred: whether, pursuant to Article 12(a) (right of access) of Directive 95/46, a DS’s right of access to information on the recipients of PD regarding him and on the content of the data communicated may be limited to a period of one year preceding the request.

Time limit on right of access: Right of access is necessary to enable DS to exercise other rights (rectification, blocking, erasure, and notify recipients of same; object to processing or request damages). The right must of necessity relate to the past, otherwise DS would not be in a position effectively to exercise his right to have data presumed unlawful or incorrect rectified, erased or blocked or to bring legal proceedings and obtain compensation for damages. MSs have some freedom of action in implementing the Directive, but it is not unlimited. Setting of time limit on right of access must allow DS to exercise his rights. It is for MSs to fix a time limit for storage of information on the recipients and the content of data disclosed, and to provide access to that information which constitutes a fair balance between the interest of the DS in exercising his rights and the burden on the controller to store that information. In present case, limiting storage of information on recipients and content to one year, while the basic data is stored much longer, does not constitute a fair balance, unless it can be shown that longer storage would constitute an excessive burden.

This month E-Crime Expert is presenting relevant Case law and rulings regarding data protection rights, law applicability and enforcement.

The purpose of this new series is to show actually how the relevant law should be applied in order to properly balance the right to free access of public information, free flow of information and the right to Privacy and Personal Data protection.

The series will balance both the applicability of Data Protection law in the private and public sector, focusing mostly on the Directive 95/46/EC (private sector) and Regulation 45/2001/EC (rights to data protection of individuals working with/for EU Institutions and bodies).

Infringement action against Germany which transposed 2nd para. of Article 28(1) of Directive 95/46 (requirement for an independent DPA) by making the authorities responsible for monitoring PD processing outside the public sector in the different Lander subject to State oversight.

Requirement of complete independence of DPA: Independence normally means a status which ensures that the body concerned can act completely freely, without taking any instructions or being put under any pressure. There is nothing to indicate that the requirement of independence concerns exclusively the relationship between the supervisory authorities and the bodies subject to that supervision. The adjective “complete” implies a decision-making power independent of any direct or indirect external influence on the supervisory authority. The guarantee of independence of DPAs is intended to ensure the effectiveness and reliability of the supervision of compliance with DP provisions, to strengthen the protection of individuals and bodies affected by their decisions. DPAs must act impartially and must remain free from any external influence, including that of the State or Lander, and not of the influence only of the

supervised bodies. Independence precludes not only any influence exercised by supervised bodies, but also any directions or other external influence which could call into question performance of those authorities of their task consisting of establishing a fair balance between the protection of the right to private life and the free movement of PD.

State scrutiny in principle allows the government of the respective Land to influence the decision of the supervisory authority or cancel and replace those decisions. This is not consistent with principle of independence.

This month E-Crime Expert is presenting relevant Case law and rulings regarding data protection rights, law applicability and enforcement.

The purpose of this new series is to show actually how the relevant law should be applied in order to properly balance the right to free access of public information, free flow of information and the right to Privacy and Personal Data protection.

The series will balance both the applicability of Data Protection law in the private and public sector, focusing mostly on the Directive 95/46/EC (private sector) and Regulation 45/2001/EC (rights to data protection of individuals working with/for EU Institutions and bodies).

C-73/07, Tietosuojavaltuutettu [Finnish DP ombudsman] v. Satakunnan

Markkinaporssi Oy and Satamedia Oy, 16.12.2008

Reference for preliminary ruling. Defendant 1 (a) collected public PD (name of persons whose income exceeds threshold, amount of earned and unearned income, wealth tax levied) from Finnish tax authorities and (b) published extracts in regional newspaper each year. Newspaper says PD can be removed on request without charge. Defendant 1 also (c) transferred the data on CD ROM to Defendant 2 (owned by same shareholders) which (d) disseminated them by text messaging system. Contracted with mobile telephony company to send text messages allowing users to receive information published in the newspaper; PD removed on request. Questions referred: (1) whether collection, publication, transfer of CD ROM and text messages constitutes processing of PD; (2) whether it is processing for solely journalistic purposes within Article 9 of Directive 95/46; (3) whether Article 17 and principles of Directive 95/46 preclude publication of data collected for journalistic purposes and its onward transfer for commercial purposes; (4) whether PD that has already been published in the media is

outside scope of Directive 95/46.

Processing: All 4 types of activities constitute processing.

Scope: Only two exceptions to scope, set forth in Article 3(2). First indent: security and criminal law=activities of the state. Second indent: processing by a natural person in course of a purely personal or household activity, concerns activities in course of private or family life of individuals. Activities (c) and (d) are activities of private companies, not within the scope of Article 3(2). A general derogation from application of directive in respect of published information would largely deprive directive of its effect. Thus activities (a) and (b) also not within scope of Article 3(2).

Processing for solely journalistic purposes: Article 1 of Directive indicates that objective is that MSs should, while permitting free flow of PD, protect the fundamental rights and freedoms of natural persons and, in particular, their right to privacy, with respect to processing of their PD. That objective can only be pursued by reconciling those fundamental rights with fundamental right to freedom of expression. Article 9’s objective is to reconcile the two rights. MSs required to provide derogations in relation to protection of PD, solely for journalistic purposes or artistic or literary expression, which fall within fundamental right to freedom of expression, insofar as necessary for reconciliation of the 2 rights. To take account of the importance of the right of freedom of expression in every democratic society, it is necessary to interpret notions of freedom, such as journalism, broadly. Derogations must apply only insofar as strictly necessary.

Fact that publication is done for profit making purposes does not preclude publication from being considered as “solely for journalistic purposes.” Medium used is not determinative of whether “solely for journalistic purposes.” Thus activities may be classified as “journalistic” if their sole object is the disclosure to the public of information, opinions or ideas, irrespective of the medium used to transmit them.

This month E-Crime Expert is presenting relevant Case law and rulings regarding data protection rights, law applicability and enforcement.

The purpose of this new series is to show actually how the relevant law should be applied in order to properly balance the right to free access of public information, free flow of information and the right to Privacy and Personal Data protection.

The series will balance both the applicability of Data Protection law in the private and public sector, focusing mostly on the Directive 95/46/EC (private sector) and Regulation 45/2001/EC (rights to data protection of individuals working with/for EU Institutions and bodies).

Reference for preliminary ruling. Huber, an Austrian national who is resident in Germany, requested the deletion of PD relating to him (name, date and place of birth, nationality, marital status, sex, entries and exits from Germany, residence status, particulars of passports, statements as to domicile, reference numbers) in the German Central Register of Foreign Nationals (AZR). Bundesamt assists public authorities responsible for application of law related to foreign nationals and asylum. Used for statistical purposes and by security and police services and judicial authorities re prosecution an investigation of criminal activities. Germany rejected the request.

Question submitted wrt DP: Is processing of PD of Austrian national in AZR compatible with the requirement of necessity under Article 7(e) of Directive 95/46?

Scope of Directive 95/46: Article 3(2) exclude from scope of Directive 95/46 processing of PD concerning public security, defence, criminal law activities. Thus, in this case, only processing for purpose relating to right of residence and for statistical purposes fall within scope of 95/46.

Necessity requirement: In light of intention that Directive 95/46 is intended to ensure an equivalent level of DP in all MSs, to ensure a high level of protection in the Community, concept of necessity in Article 7(e) cannot have a meaning which varies between MSs.

Thus, it is a concept which has its own independent meaning in Community law, and must be interpreted in manner which fully reflects the objective of Directive 95/46.

Under Community law, right of free movement of a MS national is not unconditional, but may be subject to limitations and conditions imposed by treaty and implementing rules.

Legislation provides that a MS may require certain documents to be provided to determine the conditions of entitlement to right of residence. Thus, it is necessary for a MS to have relevant particulars and documents available to it in order to ascertain whether a right of residence in its territory exists. Use of a register to support authorities responsible for application of legislation on right of residence is, in principle, legitimate.

However, register must not contain any information other than what is necessary for that purpose, and must be kept up to date. Access must be restricted to the responsible authorities. Central register could be necessary if contributes to more effective application of that legislation. National court should decide whether these conditions are satisfied.

This month E-Crime Expert is presenting relevant Case law and rulings regarding data protection rights, law applicability and enforcement.

The purpose of this new series is to show actually how the relevant law should be applied in order to properly balance the right to free access of public information, free flow of information and the right to Privacy and Personal Data protection.

The series will balance both the applicability of Data Protection law in the private and public sector, focusing mostly on the Directive 95/46/EC (private sector) and Regulation 45/2001/EC (rights to data protection of individuals working with/for EU Institutions and bodies).

Action for annulment of Directive 2006/24/EC on the retention of electronic communication data on ground that it was not adopted on appropriate legal basis (Article 95 TEC), amending Directive 2002/58 (also based on Article 95).

Appropriate legal basis for data retention directive: Court rejected Ireland’s argument that sole or principal objective of directive is investigation, detection and prosecution of crime. Article 95(1) TEC provides Council is to adopt measures for approximation of provisions laid down by law, Reg. or administrative action in MSs which have objective of establishment and functioning of internal market. May be used where disparities exist (or likely to exist in future) between national rules which obstruct fundamental freedoms or create distortions of competition and thus have direct effect on functioning of internal market. Premise of Directive was to harmonize disparities between national provisions governing retention of data by service providers, particularly regarding nature of data retained and periods of data retention. Apparent that differences were liable to have direct impact on functioning of internal market which would become more serious with passage of time.

Article 47 TEU provides that none of provisions of TEC may be affected by provision of TEU, in order to safeguard building of acquis communautaire. Insofar as Directive 2006/24 comes within scope of Community powers, it could not be based on provision of TEU without infringing Article 47. Directive 2006/24 provisions are limited to activities of service providers and do not govern access to data or use thereof by police or judicial authorities of the MSs. They are designed to harmonise national laws on obligation to retain data, categories of data to be retained, periods of retention of data, DP and data security, and conditions for data storage. They do not involve intervention by police or law enforcement authorities of MSs, nor access, use or exchange by them. Thus Directive 2006/24 relates predominantly to functioning of internal market.